Like all but eight states, New York allows employers to pay workers who earn tips a lower minimum wage. When the state raised the minimum wage to $15 per hour in 2017, tipped workers were excluded. But in late 2017, Governor Andrew Cuomo announced that he would have the commissioner of the state’s Department of Labor examine whether to end New York’s tipped minimum wage. At the time, Cuomo linked the tipped minimum wage directly to sexual harassment, particularly in the restaurant industry.
But when Cuomo announced this New Year’s Eve that he was finally taking action to end the state’s lower minimum wage, he did so with a big caveat: Hospitality workers—including restaurant servers, bussers, and bartenders—were not included. The change only applies to hair and nail salon workers, parking attendants, car wash workers, door persons, and others in “miscellaneous” industries.
“To leave out the very workers that started the campaign…is appalling,” said Saru Jayaraman, president of One Fair Wage.
Lindsey Brownstein, who works as a server in New York City, was shocked to find out she wouldn’t be paid the same minimum wage as other workers. “That was really a step back for me,” she told a crowd of about 50 restaurant workers gathered outside Cuomo’s midtown Manhattan offices on Monday morning. Brownstein is a transplant from California, where she worked for tips for four years but still made the same minimum wage as any other kind of worker.
The lower minimum wage for tipped workers doesn’t just foster economic insecurity. It’s also been linked to sexual harassment, something that plagues the restaurant industry at a higher rate than all others. Restaurant Opportunities Center United has found that female restaurant workers in states with lower tipped wages are twice as likely to experience sexual harassment as those in states with a single minimum wage for all.
Dealing with sexual harassment at work is part of Brownstein’s every day. “Being called ‘honey,’ ‘sweetie,’ ‘baby’ has become normal,” she told Monday’s crowd. “Getting asked where you live, what you’re doing later has become normal.” Speaking to me after the event, she said she’s come to expect that behavior at every shift. “I definitely tolerate it more than I used to,” she said. As a student, she relies on her tips on the days she works. “I’ve felt at times unsafe,” she said. “It’s starting to become normal, and it scares me.”
“I tolerate this behavior because that’s my income, that’s my bills,” she explained. But that has caused “a loss of a sense of security and [the feeling that] some of my power’s been taken away,” she told the audience. “I feel overwhelming defeat and humiliation.”
Brownstein was one the restaurant workers gathered to protest Cuomo’s decision to leave them out, a mostly female group that included people young and old and of all races. They donned pink hats and black aprons calling for “one fair wage,” with red arm bands declaring, “Until the violence stops.” Huddled against the sharp wind, the group sang, chanted, and listened to a number of speakers that included both current restaurant workers and celebrities—activist Eve Ensler, actresses Alysia Reiner and Carmen LoBue, and Daniel Garcia-McGuire, deputy public advocate for the city—each of whom had gotten their start as restaurant workers before achieving fame. “I was groped and catcalled…I’ve been told to suck it up and smile,” Reiner recalled of her time as a server. “Every time I stay silent, that allows the next human being to be treated in a way that is not humane.”
Nikki Cole, national policy campaign director for the advocacy group One Fair Wage, told the crowd that she worked in a restaurant making just $3.31 an hour for 17 years, which led to such financial insecurity that she was homeless for a while. It also led to her depression and drug and alcohol abuse. “I faced ongoing sexual harassment,” she said. “There’s an imbalance of power when you’re working for tips.” It started right away with her first job at an Applebee’s as a teen, where coworkers posted a “T&A” list ranking all of the female employees. “Sexual harassment is kind of like the air you breathe in the restaurant industry,” she said.
“Governor Cuomo, I’m calling on you as an ally,” Garcia-McGuire said. “Earn the title of a progressive beacon here in New York.”
The protest also included a mass self-defense training from the Center for Anti-Violence Education. The trainers led the crowd through moves to evade hugs from the front and behind, another to shrug off an unwanted touch on the shoulder, a way to gently but forcefully free a wrist from someone’s clutch, and, for the most dangerous situations, a strike with the heel of a palm to the four main targets: the nose, eyes, throat, and knees.
The training was both practical and symbolic, driving home that workers have to fend for themselves without policy changes. “We shouldn’t have to defend ourselves in the workplace, but we have to because [Cuomo] left us out,” Jayaraman told me.
In response to a request for an explanation as to why restaurant workers were excluded from Cuomo’s action, a spokesperson for the New York State Department of Labor said that during the public hearings that were held ahead of his announcement, “an overwhelming majority were against the elimination of the minimum wage tip credit,” adding that the department “received over 3,000 written comments and a significant amount of those were in favor of maintaining the current system though the process did uncover some issues that require more study in the future.”
But a poll conducted late last year of 400 New York State restaurant workers by Lake Research Partners at the request of One Fair Wage found that over 80 percent supported raising the tipped minimum wage.
At Monday’s protest, Anita Bailey carried a sign declaring, “We are not on the menu,” and described working for tips at a restaurant and enduring sexual harassment. “Customers felt like they could treat me any kind of way, make advances at me,” she told me. “I felt like I had no recourse. My manager said, ‘Suck it up, keep smiling.’” It was a big part of why she left that job and the industry. But now she’s planning to come back as an owner: She’s in the process of opening her own vegan and vegetarian restaurant. She says she would be happy to pay her employees a full minimum wage. “I’m going to make sure they get paid what they’re worth because I’ve been in their shoes,” she said. “I don’t think it’s difficult. I just think businesses…don’t want to budget for it.”
The tipped minimum wage isn’t the only tool in the legislative toolbox that could help stem the high tide of abuse in the restaurant industry. After the #MeToo movement went viral, state legislators introduced around 200 bills to address sexual harassment and abuse, and 15 states actually passed new laws. That’s “unprecedented engagement on this issue,” noted Ramya Sekaran, a fellow at the National Women’s Law Center. For example, 13 states have banned or limited the use of nondisclosure agreements that can prevent workers from reporting sexual harassment or speaking out about it. Restaurant owner Mike Isabella allegedly used such agreements to silence workers who experienced harassment.
Ten states and New York City also now require workplaces to put in place preventative measures, such as training or anti-harassment policies. It’s important “in a pervasive culture where they’re experiencing harassment by customers, colleagues, and supervisors, and it’s become so normalized,” Sekaran said.
Four states and New York City have also extended the statute of limitations on sexual harassment, giving victims more time to come forward and file a claim. “In the restaurant industry, the culture of harassment is just normalized,” Sekaran noted. So “a worker may not realize what’s happening to them is potentially illegal” at first. Lengthening the statute of limitations also gives low-wage workers more time to gather the resources for legal help.
Some in the industry have noticed a cultural shift. “MeToo changed everything,” said Lauren Taylor, founder of Safe Bars, which conducts hands-on anti-harassment trainings for restaurant staff. “I would definitely draw a bright line before and after October 2017.” When she raises the issue of harassment in restaurants, she no longer get pushback or disbelief; people mostly take it seriously. “Just acknowledging that it’s a widespread problem is very different,” she said. There is also ongoing organizing among restaurant workers to address not just sexual harassment but also other issues they face. “It’s a cultural change and it’s a change in the conversation,” she said.
“More people are telling their stories and more people are getting support for what happened, and that can’t go back,” she added. “That’s the toothpaste that’s out of the tube.”
Even as the culture is shifting, legal change has been slower. It’s “been pretty limited,” Jayaraman said. “We just haven’t seen enough policy change for low-wage workers.”
Restaurant workers aren’t giving up. Jayaraman said that the protest on Monday will be the “first of many.” The workers and their allies plan to follow Cuomo around the state, staging protests to demand they be included in the regular minimum wage.
Jayaraman argued that it’s even more critical for Cuomo to act now given that the Trump administration has proposed rule changes that would allow employers to make servers share more of their tips, as well as allowing them to pay the lower tipped wage for more types of work. The Employment Policy Institute has estimated the changes will cost workers more than $700 million a year. “It’s a dangerous time to leave these workers out,” she said.
At the end of the protest, the restaurant workers surged into the gleaming office building to demand that a letter they wrote be delivered to Cuomo. As they streamed back out onto the cold streets, they chanted, “One! Fair! Wage!”
“Governor Cuomo can you hear us?” Ensler yelled at the building façade. Turning back to the crowd, she declared, “I stand with you and I will be here until you and all of us get one fair wage.”
“We want our due,” Bailey said.